Rajasthan High Court

Suman Devi W/O Vijay B/C Jangir Brahmin vs State Of Rajasthan (2023:Rj-Jp:39685) on 14 December, 2023

Author: Mahendar Kumar Goyal

Bench: Mahendar Kumar Goyal

[2023:RJ-JP:39685]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

        S.B. Criminal Miscellaneous (Petition) No. 6888/2019

Suman Devi W/o Vijay, R/o Village Rajpura, Tehsil Thanagazi,
District Alwar, Raj.
                                                     ----Complainant/Petitioner
                                      Versus
1.       State Of Rajasthan, Through PP
                                                                      Respondent

2. Manohar Lal S/o Phoolchand, R/o Village Rajpura, Tehsil Thanagazi, District Alwar, Raj.

----Accused Petitioner

For Petitioner(s) : Mr. Sikandar Singh Sakkarwal For Respondent(s) : Mr. Riyasat Ali, P.P. Mr. Nitin Jain

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment / Order

14/12/2023

This criminal miscellaneous petition under Section 482 CrPC

has been filed assailing the legality and validity of the order dated

01.02.2019 passed by the learned Additional Sessions Judge No.1,

Alwar (for brevity "the learned Revisional Court") in Criminal

Revision No.29/2016 whereby, while allowing the revision petition

preferred by the respondent No.2-accused (hereinafter referred to

as "the accused") and setting aside the order dated 16.11.2016

passed by the learned Judicial Magistrate, Thanagazi, District

Alwar (for short "the learned trial Court") taking cognizance

against the accused under Sections 323, 354(A)(1)(iv), 354 (H)

(1)(i) & 509 IPC, the matter was remanded back to pass an order

afresh on cognizance.

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The relevant facts in brief are that the petitioner/complainant

(for brevity "the petitioner") lodged an FIR No.158/2014 against

the accused under Sections 341, 323, 354 & 504 IPC wherein, the

investigating agency after thorough investigation, submitted the

negative Final Report finding the allegations to be false. On a

protest petition filed by the petitioner thereagainst and after

recording her statement under Section 200 CrPC and the

statement of Shri Vijay Kumar, her husband, under Section 202

CrPC, the learned trial Court took cognizance against the accused

as stated hereinabove. The revision petition filed thereagainst by

the accused has been allowed by the learned Revisional Court vide

order dated 01.02.2019 as stated hereinabove.

Assailing the impugned order, the learned counsel for the

petitioner would submit that in view of the allegations levelled by

the petitioner against the accused in her statement recorded

under Section 164 CrPC as also under Section 200 CrPC, it was

not open for the learned Revisional Court to have set aside the

order of cognizance. He, therefore, prays that this criminal

miscellaneous petition be allowed, the order dated 01.02.2019

passed by the Revisional Court be quashed and set aside and the

order dated 16.11.2016 passed by the learned trial Court be

restored.

Learned Public Prosecutor has opposed the prayer.

Learned counsel for the accused, supporting the findings

recorded by the learned Revisional Court, would submit that since,

while taking cognizance against him, the learned trial Court did

not take into consideration the Police Report at all, the learned

Revisional Court did not err in remanding the matter back to the

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learned trial Court for passing the order afresh on cognizance,

setting aside the order passed by it. He, in support of his

submissions, relies upon the following judgments of this Court:-

1. Judgment dated 03.08.2023 in SB Criminal Appeal

No.1482/2023: Bhuta Ram versus State of Rajasthan &

Anr.

2. Bhagwan Sahai Khandelwal & Ors. versus State of

Rajasthan & Anr.: 2006(1) RLW 640.

Heard. Considered.

As is evident from the material on record, after investigation

in the FIR lodged by the petitioner, the Police has submitted the

negative Final Report finding the allegations to be false on the

basis of evidence collected during the investigation. A perusal of

the order dated 16.11.2016 taking cognizance against the accused

reveals that while passing it, the learned trial Court did not take

into consideration the Police Report at all and has relied solely on

the contents of the complaint, statement of the prosecutrix

recorded under Section 164 CrPC as also her statement recorded

under Section 200 CrPC, a fact not even disputed by the learned

counsel for the petitioner. It is a well settled legal principle that

while considering the protest petition, the Court is obliged to

consider the Police Report as well. A coordinate Bench of this

Court has, in case of Bhagwan Sahai Khandelwal & Ors.

(supra), held as under:-

"(7). In case of Sampat Singh v. State of Haryana 1993 SCC (Cri.) 376, the Hon'ble Supreme Court had clearly stated that the Magistrate must give reason for disagreeing with

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the negative Final Report. In case, no such reasons are given, then the order is unsustainable in the eyes of law. Taking a cue from the said judgment, this Court, in case of Gopal Sharma v. State of Rajasthan 2005 (10) ROD 4197 (Raj.), has held a similar view.

(8). Despite the fact that the Hon'ble Supreme Court had laid the principle of law in the case of Sampat Singh (supra), surprisingly the Judicial Magistrates are still passing cryptic orders without following the principle enunciated by the Hon'ble Supreme Court. Because of the omission committed by the Judicial Magistrate, this Court is flooded by Revision Petitions challenging the cryptic and unreasoned cognizance order. Such unsustainable orders are needlessly burgeoning the already over burdened High Court. Therefore, passing of such illegal orders is cause for serious concern to all of us. Firstly, learned Judicial Magistrates are supposed to know the principle laid down by the Hon'ble Supreme Court. Secondly, such orders infringe the fundamental right of the alleged offender to defend himself. Thirdly, such orders add to the sky rocketing litigations inundating this Court.

(9). In the present case, despite the existence of a negative Final Report, the learned Judicial Magistrate has merely mentioned that the Police has submitted a negative Final Report on the basis of which the complainant has filed the protest petition. Learned Judicial Magistrate has neither bothered to tell us what are the findings of the Police after a thorough investigation, nor bothered to tell us why he disagrees with the findings of the Investigating

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Agency. He has merely discussed the statements recorded under Sections 200 & 202 Cr.P.C.

without stating any reason for disagreeing with the negative Final Report. Hence, the impugned order is a non-speaking order, which suffers from the virus of non-application of mind. Therefore, the impugned order deserves to be quashed and set aside.

(10). In the result, we quash and set aside the order dated 13.3.2001 and direct the Additional Civil Judge (Junior Division) and Judicial Magistrate, First Class No. 4, Alwar to re-hear the prosecution and to examine and discuss the negative Final Report and to pass a reasoned order. Considering the fact that the case has been hanging fire since 1998, the learned Judicial Magistrate is expected to carry out this exercise within a period of two weeks from the date of receipt of a certified copy of this order. "

Very recently, in case of Bhuta Ram (supra), a coordinate

Bench of this Court has held as under:-

"12. It is the discretion of the trial court to accept or reject the final report submitted by the investigating agency after considering and evaluating the final report as well as the other material available as evidence. The trial court can apply its judicial mind independent of the opinion of the investigating officer and can proceed to take cognizance of offence(s) that it thinks may prima facie be made out against the accused from the contents of the police report. Cognizance is taken after consideration of the

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police report, be it positive or negative. In an order dated 13.04.2023 passed by this Court in S.B. Criminal Appeal No. 399/2023 titled Niraj Goyal & Anr. Vs. State of Rajasthan & Anr., it was held as under:

"In a case where a detailed negative final report is submitted, it becomes imperative upon the Judicial Officer to show his disagreement with the conclusion of the Investigating Officer and it should be mentioned in clear terms in the order that why he was not agreeable with the result of the investigation. This is to be done before taking cognizance of the offence and issuance of the process."

As held in the afore-said case, if the result of the investigation is in favour of the accused or a negative final report has been submitted, then it is important for the judicial officer to state with clarity the reasons for disagreement with the conclusion of the investigating agency and in the case at hand, the learned Special Judge has stated his conclusion in lucid terms and has countered and considered the reasoning on the basis of which the investigating officer had submitted a negative report against the accused."

Since, in the present case, indisputably, the Police Report

was not taken into consideration by the learned trial Court while

taking cognizance against the accused, in the backdrop of the

aforesaid precedential law, in the considered opinion of this Court,

the learned Revisional Court did not err in quashing the same and

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remanding the matter back to the learned trial Court to pass an

order afresh taking into consideration the Police Report.

Resultantly, this criminal miscellaneous petition is dismissed

being devoid of merit.

(MAHENDAR KUMAR GOYAL),J

Manish/988